England and Wales High Court (Administrative Court) Decisions

The Queen on the Application of: Shayan Baram SAADI Zhenar Fazi MAGED Dilshad Hassan OSMAN &Rizgan MOHAMMED v. Secretary of State for the Home Department [2001] EWHC Admin 670 (7th September, 2001)

Case No: CO/0074/01
CO/4559/00
CO/4533/00
Neutral Citation Number: [2001] EWHC Admin 670
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 7 September 2001

20.Mr. Scannell has relied on Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, a decision of the Privy Council on appeal from Hong Kong. That case involved a claim by Vietnamese Boat People that their detention `for several years' pending removal from Hong Kong was unlawful. The relevant statute permitted detention pending removal. It was not argued that there was a limit on the power so that only those who might otherwise abscond or otherwise misbehave if allowed their liberty could be detained. The appeal was based on the contention that the power was limited to circumstances where removal could be achieved within a reasonable time. Reliance was placed on a decision of Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. At page 111A - E Lord Browne-Wilkinson, giving the judgment of the Committee, said this:-
"Section 13D(1) confers a power to detain a Vietnamese migrant "pending his removal from Hong Kong." Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such a power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain "pending removal" their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.
Although these restrictions are to be implied where a statute confers simply a power to detain "pending removal" without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships' view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances".

21.There is no doubt that the powers contained in the Immigration Act 1971 to detain must be strictly construed. But there is in my judgment no reason to limit the power in the way Mr. Scannell submits. The purpose is clearly set out in Paragraph 16(1) and (2). In particular, Paragraph 16(1) enables a person to be detained `pending a decision to give or refuse him leave to enter'. That is the purpose for which Dr. Saadi was detained and that and the possible use of Paragraph 16(2) justified the detention of the other claimants. Neither Hardial Singh nor Ten Te Lam is authority for the proposition that such powers can only be used where it is necessary to use them because otherwise, for example, the applicant might abscond. The only limitation is that it must be for a reasonable time. Lord Browne-Wilkinson's reference to unreasonable circumstances at the end of the passage cited was I believe intended to cover a situation where, for example, the purpose could not be achieved at the time of the detention within a reasonably foreseeable period or where the individual circumstances of a person made a decision to detain him unreasonable. So in the context of the cases before me it would be unreasonable to detain someone who was unsuitable for detention. I accept Mr. Pannick's submission that, provided the power is (as is the case here) being used for a purpose permitted by the statute, it is for the Secretary of State to decide (subject to rationality) on the circumstances in which it should be used. It would have been open to Parliament to put specific limits on the power to detain (as has been done obliquely in the Bail Act). It has not done so in the Immigration Act.

22. Mr. Scannell has relied on R v Secretary of State for the Home Department ex parte Brezinski & Glowacka (Unreported: 19 July 1996). But that case was heard at a time when the policy was to use detention only as a last resort. In that case (at page 6 of the transcript before me) Kay J said this:-
"It seems to me that this is at the very heart of the decision-making process in cases such as these. It is, one adds, not very different from the sort of approach that is clearly employed and properly employed by those who have to consider bail in other contexts. One weighs all the various factors. One only restricts a person's liberty if it is essential to do so and one judges that by having regard to all the factors that are properly to be considered in their particular case."
This cannot be used to set a general approach to detention in all cases. Apart from Oakington cases where there are reasons to detain to achieve a speedy decision, the policy of last resort must very properly prevail, but those observations cannot apply where there is a statutory purpose behind the detention. It suffices that the Secretary of State reasonably regarded it to be necessary to detain to enable those cases to be dealt with speedily. In Secretary of State for the Home Department v Khan [1995] Imm A.R. 348 the Court of Appeal was concerned with the detention of illegal entrants who had claimed asylum and had been served with notices that removal was proposed. In the meantime, they were detained under Paragraph 16(2). Mr. Pannick, who appeared for the Secretary of State in that case, argued that the claims for asylum did not prevent Paragraph 16(2) applying: they merely protracted the period during which detention could properly be ordered. That argument was accepted. But in giving judgment, Leggatt LJ said (page 334):-
"Although the immigration officer intends to give directions for the removal of the respondents, he cannot do so pending the Secretary of State's determination of their applications for asylum. Since there is reason to fear that unless detained they may abscond, pending the giving of directions, and indeed pending their removal, the respondents are detained".
The matters which arise in these claims were not relevant nor were they argued and I do not regard these observations as authority for the general proposition put forward by Mr. Scannell. In any event, at that time the Secretary of State's own criteria would have prevented detention unless there was a danger that the individuals in question would abscond.

23. It seems to me that the detention of the claimants was lawful in that it was permitted by the provisions of the Immigration Act 1971 as amended. The remaining question to be answered, and the one which is of fundamental importance, is whether the Human Rights Act 1998 and the application of Article 5 of the European Convention on Human Rights renders the detention unlawful. Mr. Pannick submitted that that was the only real issue in the cases. I agree.

24. Article 5, so far as material, reads as follows:-
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
It is to be noted that Article 5.4 is not dealing with bail. In Zamir v United Kingdom (1983) 40 D.R. 42 at page 59 (Paragraph 109) the Commission said:-
" ... this right [sc. Under Article 5.4] must be seen as independent of the possibility of applying to a court for release on bail. In any event, the Commission observes that the applicant's solicitor asked the Home Office that the applicant be released in a letter dated 11 October 1978 and, further, requested that the applicant be admitted to bail in the application for habeas corpus ...".
And in Chahal v United Kingdom (1996) 23 EHRR 413 at page 468 (Paragraph 127) the Court said:-
" ... it is clear that Article 5.4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the `lawful' detention of a person according to Article 5.1".
Paragraph 22(1B) of Schedule 2 to the 1971 Act prevents any application for bail being made by a person detained under Paragraph 16(1) pending examination unless seven days have elapsed since the date of his arrival in the United Kingdom. Otherwise, the right to apply for bail is unrestricted and Article 5.4 is met by the right to apply for habeas corpus or judicial review of the lawfulness of the detention. And once any examination is concluded (which will normally be on Day 5) bail can in all cases, at least in theory, be applied for.

25. The question is whether the detention at Oakington is permitted by Article 5.1(f). The Conditions set out in Article 5.1 are designed to ensure that there can be no arbitrary deprivation of liberty and must be given a narrow interpretation: see Winterwerp v Netherlands (1979) 2 EHRR 387 at page 401 (Paragraph 37). In NC v Italy (11 January 2001: case No. 24952/94) the Court stated that it did not suffice that the deprivation of liberty was executed in conformity with national law; it must also be necessary in the circumstances (see Paragraph 41 of the Court's judgment). Tomasi v France (1992) 15 E.H.R.R. 1 concerned the detention of the applicant for four years and seven months before his eventual acquittal on serious charges. A risk of absconding was relied on to justify at least part of the detention. On page 52 at Paragraph 98 the court pointed out that there had been a failure to give reasons why the risk was decisive and to counter any risk by measures such as lodging securities or keeping the applicant under court supervision. The Court in these cases is indicating that measures short of detention must be considered and rejected before detention can be justified even if the conditions in Article 5.1 permitting detention appear to be met. Otherwise, the detention would not be lawful. But these cases do not necessarily help Mr. Scannell since they were not concerned with Article 5.1(f) to which different considerations apply as will become apparent.

26.The European Convention on Human Rights is of course an international document aimed at countries with differing systems of law. Thus it cannot be construed like an English statute even though it is incorporated into domestic law by way of a Schedule to the Human Rights Act 1998. But the words have been carefully chosen and effect must be given to them and to the purpose which dictated their use. Thus it is clear that 5.1(f) is looking at two different stages. The first part is concerned with the control of those who are seeking to enter a state and the second with those whom a state is seeking to remove. Thus the reference to the prevention of an unauthorised entry must in my view cover a person who seeks leave to remain as well as one who is seeking leave to enter. Equally action may include the making of investigations to see whether removal should follow.

27. It is clear from Chahal v United Kingdom (supra) that detention with a view to removal can be justified under Article 5.1(f) even though there is no danger of absconding. In Paragraphs 112 and 113 the Court said this (at page 464):-
"112. The Court recalls that it is not in dispute that Mr. Chahal has been detained `with a view to deportation' within the meaning of Article 5.1(f). Article 5.1(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence of fleeing; in this respect Article 5.1(f) provides a different level of protection from Article 5.1(c).
Indeed, all that is required under this provision is that `action is being taken with a view to deportation'. It is therefore immaterial, for the purposes of Article 5.1(f), whether the underlying decision to expel can be justified under national or Convention law.

113. The Court recalls, however, that any deprivation of liberty under Article 5.1(f) will be only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5.1(f).
Mr. Chahal had been detained for almost 5 years. Nonetheless, the Court found that there was no breach of Article 5. In R(Sezek) v Secretary of State for the Home Department (25 May 2001 - [2001] All E.R. (D) 336), the Court of Appeal adopted the same approach. In Paragraph 13 of his judgment, Peter Gibson LJ said:-
"From the right to liberty and security is expressly excepted the case of a person against whom action is being taken with a view to deportation. Article 5.1(f) has been construed strictly, as the jurisprudence relating to that provision demonstrates ... There is nothing in the Convention nor any authority to support [counsel's] assertion that Mr. Sezek's detention is incompatible with Article 5.1(f) if other ways of preventing him absconding are available".

28. Amuur v France (1992) 22 E.H.R.R. 533 concerned the first part of Article 5.1(f). The applicants arrived at Orly airport and claimed asylum. They were held at the airport and a nearby hotel, part of which had been converted to be used as a holding area, for 20 days and then, following refusal of leave to enter, removed to Syria, via which they had travelled to France. The Court unsurprisingly decided that they had been deprived of liberty and so fell within the protection of Article 5 and that the failure to allow access to legal or other advice for 15 days made the deprivation of liberty not compatible with Article 5.1. In Paragraph 43 on page 556 the Court said this:-
"Holding aliens in the international zone does indeed involve a restriction upon liberty, but one which is not in every respect comparable to that which obtains in centres for the detention of aliens pending deportation. Such confinement, accompanied by suitable safeguards for the persons concerned, is acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, particularly under the 1951 Geneva Convention ... and the ECHR. States' legitimate concerns to foil the increasingly frequent attempts to get round immigration restrictions must not deprive asylum seekers of the protection afforded by those Conventions".

29. It is clear that the detention of a person seeking entry and falling within the first part of Article 5.1(f) must be to prevent that person effecting an unauthorised entry. The language of Article 5.1(f) makes that clear. Thus detention cannot be justified on the ground that it may speed up the process of determination of applications generally and so may assist other applicants. Equally, it is plain that detention cannot be justified on the basis that it might deter others from seeking to enter by making false claims for asylum. Indeed, Mr. Pannick did not seek to suggest that any such policy could be lawful. It would clearly not be lawful. But he does submit that because without a favourable decision on the asylum claim entry cannot be authorised detention is justified. The investigation will prevent an unauthorised entry and so detention as part of the process is permissible. I cannot accept that submission. It flies in the face of any sensible reading of Article 5.1(f) and is in my view incompatible with the approach of the court in Amuur in the passage cited in Paragraph 28 above. Once it is accepted that an applicant has made a proper application for asylum and there is no risk that he will abscond or otherwise misbehave, it is impossible to see how it could reasonably be said that he needs to be detained to prevent his effecting an unauthorised entry. He is doing all that he should to ensure that he can make an authorised entry. If his application is refused, further consideration may be given to whether he should be detained under the second part of Article 5.1(f), but the fact that all these claimants were then granted temporary admission underlines the reality that there was considered to be no danger of any of them effecting an unauthorised entry.

30. Mr. Pannick then submits that they are properly to be regarded as covered by the second part of Article 5.1(f) because they will be removed unless their asylum claims are allowed. A person who arrives and seeks leave to enter cannot properly be regarded as someone `against whom action is being taken with a view to deportation' (in this context, deportation merely means removal). Even if action is extended to include investigation, the investigation is to see whether he should be permitted to enter. In any event, it is not compatible with asylum seekers' rights under the Refugee Convention to regard the investigation of claims for asylum in all cases as being action with a view to deportation. The question is not whether they should be removed but whether they should be permitted to enter. Thus there can be no doubt that Dr. Saadi at least did not fall within either part of Article 5.1(f).

31. It is suggested that illegal entrants are in a different position. Whether or not they are depends on the facts of a particular case. Thus where an illegal entrant is caught and removal is to be effected, a claim for asylum to stop such removal cannot prevent the second part of Article 5.1(f) applying. Equally the same will apply where removal is ordered and that triggers an asylum claim. Chahal was such a case. But it has been recognised that refugees may well be compelled to obtain entry to a safe country by illegal means and such illegal entry should not necessarily be held against them. If a person enters by unlawful means, for example hidden in a lorry, but does so with a view to claiming asylum, and claims asylum on arrival or within such time after arrival as is reasonable, he is not dealt with on the basis that he is to be removed but on the basis that he is applying to enter. That reflects the factual situation in the cases of Messrs Maged, Osman and Mohammed. It was never suggested to them that they were to be removed or that action was being taken with a view to their removal. The action being taken was with a view to determining whether they should be allowed to remain and so to enter. If an illegal entrant only claims asylum when discovered, the situation may be different and the approach of the Court of Appeal in Secretary of State for the Home Department v Khan (supra) may justify detention under the second part of Article 5.1(f).

32. It is wholly artificial to regard the detention as within the second part of Article 5.1(f). It is not. It is therefore not possible to justify the detention since it does not fall within Article 5.1(f) and is accordingly unlawful.

33. That conclusion means that it becomes unnecessary to consider whether the detention was arbitrary so as to render it not lawful and so not within Article 5.1(f). However, the matter has been fully argued and, in case these cases go further, I should deal with the point. If the detention is covered by the second part of Article 5.1(f), there will be no question of arbitrariness. So much is clear from Chahal and Sezek . Action with a view to removal justifies detention and the only situation in which such detention will be unlawful is if it is for an unreasonable time or in unreasonable circumstances. Neither consideration applies to these claims.

34. Mr. Pannick submitted that the same principle must apply to the first part of Article 5.1(f). Once it is established that the detention is covered by either part of Article 5.1(f), no more need be established to show that it is lawful. In order to justify detention under the first part it is necessary to show that it is to prevent the detainee effecting an unlawful entry. If that is the purpose, it is submitted that it is unnecessary to determine whether other means short of detention could achieve that purpose. Under the second part, nothing is to be achieved by the detention; it is justified by action being taken with a view to removal. But under the first part the detention is designed to prevent the detainee effecting an unauthorised entry. This is much closer to Article 5.1(c) and so the approach set out in Tomas i and Winterwerp would seem to be more appropriate. When detention is used to ensure that an individual does or does not do something, it is surely required that it be established that that result cannot reasonably be achieved by means other than detention. Otherwise, the detention could properly be said to be arbitrary and thus to contravene the fundamental objective of Article 5 and the right to liberty.

35. Thus far I have assumed that Chahal will apply to the detention if the second part of Article 5.1(f) is applicable. But I am not persuaded that Chahal does apply. It is in my judgment necessary to identify the reason for the detention. It is clear that it is in order that there should be speedy decision-making of a substantial number of applications: that indeed is the evidence from Mr. Martin which is before me. The minister said in a news release announcing Oakington's opening:-
"Speeding up the asylum process is a major objective in our reform of the asylum system. People who come to the United Kingdom may be fleeing terrible persecution and it is important that their claims are dealt with swiftly, so that rather than being stuck in an administrative limbo they are able to get on with rebuilding their lives.
Oakington will enable us to deal quickly with the straightforward asylum claims. It is in everyone's interest that both genuine and unfounded asylum seekers are quickly identified. Genuine asylum seekers can be given the support they need to integrate with society. And those with unfounded claims can be sent home quickly thereby sending a strong signal to others thinking of trying to exploit our asylum system".
I certainly (and I suspect most people) would not quarrel with the sentiments expressed, although it is perhaps somewhat ironic that none of the claimants can at present be returned to Northern Iraq since there is no means of getting them there except via Baghdad and, for obvious reasons, they cannot be returned there. But, desirable though it is that there should be speedy decisions, that cannot necessarily justify detention. Even assuming that either part of Article 5.1(f) applies the reality is that the claimants were not detained because of that but because of the belief that speedy resolution of their applications could not otherwise be achieved.

36. Accordingly, as it seems to me, it is necessary to show that detention was indeed required to achieve that purpose. That is because it is clear that none of the claimants would have been detained but for the fact that they qualified for the Oakington fast track procedure and had to be detained to enable that procedure to be carried out. They were not detained because they might otherwise effect an unauthorised entry or because action was being taken with a view to their removal from the United Kingdom. While that may be a justification for a finding that Article 5.1(f) apples (and, for the purposes of this part of my judgment, I am assuming that it is) it was not the reason for or the immediate cause of the detention. That being so, it is in my view, consistently with the right to liberty enshrined in Article 5, necessary to decide whether detention was indeed proportionate. If it was not, it was arbitrary and so not lawful.

37. I recognise the care which must be exercised before I could consider it proper to intervene and the margin of discretion to be allowed to the Secretary of State as the decision-maker. The principles have been helpfully set out in a very recent decision of the Court of Appeal in Samaroo v Secretary of State for the Home Department (17 July 2001: Case No. C/2801/0030 and 0052). At Paragraph 35, after considering relevant authorities, in particular R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 and R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622, Dyson LJ said this:-
"Accordingly, the function of the court in a case as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr. Samaroo's right to respect for his family on the one hand and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State, I have been assisted by the discussion at Paragraph 3.26 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill Q.C. and David Pannick Q.C. are the general editors. They identify the following factors: (a) The nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter; (b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord consideration deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable; (c) The extent to which the court has special expertise, for example in relation to criminal matters; (d) Where the rights claimed are of especial importance, a "high degree of constitutional protection" will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts".
It is necessary to seek a fair balance between the human rights of the individual and the interests of the community at large. Article 5 defines the circumstances in which deprivation of liberty may be permitted with precision. In some cases, things may have happened (e.g. a conviction by a competent court or action being taken with a view to removal) which justify detention. In such cases, it will be easier to establish that the detention was lawful. In others, detention is to achieve or to prevent something. In such cases, there is a need to show that detention was reasonably required to achieve or to prevent that thing.

38. I entirely accept that the presence of the applicant, his attendance at interview and his availability both to consult his representative and for any further questioning which may be considered necessary is vital. The system will not otherwise operate successfully. I accept, too, that interviews may frequently for different reasons need to be rescheduled, sometimes at short notice, and so presence at all material times is required. Mr. Martin says that only by detention can that be achieved.

39. The 1999 Act has conferred the powers (now in sub-paragraphs (2A) to (2E) of Paragraph 21 of Schedule 2 to the 1971 Act) to impose conditions on temporary admission. Conditions are a feature of bail in criminal cases and one such condition may be a condition of residence. So there can be a condition of residence at a true reception centre (rather than the euphemistic and somewhat misleading description of Oakington). There can be a requirement to attend at interview as and when required and a condition that the applicant is available at particular times (for example, during normal working hours). It can be made clear that a failure to co-operate or to abide by the requirements of availability will be likely to result in the rejection of the claim under Paragraph 340 of the Immigration Rules. It will be difficult for an appellant in such circumstances to persuade an adjudicator or the I.A.T. that his claim is well-founded if he failed without excuse (for it would be difficult to establish any excuse) to co-operate.

40. It is said that if there were no locks applicants would leave (not because they were going to abscond; they would not be at Oakington if there was a concern that they might abscond). They might then not be available: perhaps they would miss the bus or it would be running late. Perhaps their watches might stop. Most applicants would have no resources; they would need none since board and lodging would be provided. It seems to me that in those circumstances they would be unlikely to leave - there would be no incentive to do so. I do not of course suggest that it would be right to require a 24 hour presence: that would be akin to house arrest and might well be regarded as detention. But that is not necessary to achieve the objective of the system.

41. Mr. Scannell has suggested that in reality detention was decided on because of concerns by those who lived near Oakington that asylum seekers would cause problems if allowed to leave the centre. The local planning authority was consulted in accordance with the system in operation where development by government which does not require formal planning permission is concerned. This culminated in a proposed condition in the following terms:-
"No detainee shall normally be allowed to leave the centre without the provision of transport or an escort although persons granted temporary admission to the United Kingdom from the Centre will normally be offered transport to connect with rail or bus services but may make their own arrangements {Reason: to minimise the risk of prejudicing public order and to allay public concern about the possible effect of significant numbers of strangers without support within the local community]".
This, it appears, was accepted by the Home Office. It is said that it appears to be inconsistent with the statement made in October 1999, when the Oakington proposal was being publicised, that:-
"In certain circumstances applicants would be able, with prior approval, to leave without escort for specific purposes and periods".
Mr. Martin explains that that was intended to deal with such matters as a need for medical attention which could not be provided at the Centre. He draws attention to an answer to a question in Parliament on 3 April 2000 which makes that point. He categorically denies that a concern that local public opinion would not accept anything other then detention played any part in the decision that detention was needed. In the light of that, I do not think it would be right for me to accept that Mr. Scannell's suggestion is correct. Nor should I rely on such public concerns as a reason for finding that detention was proportionate. I should say that both counsel accepted that in considering proportionality I was entitled to rely on matters which supported the Home Office view even if not relied on by them, but I should be very slow to do so.

42. I recognise that, as Mr Martin has said, ministers have considered whether a use of the power to impose conditions would have achieved the desired result and have decided that it would not. But I have also had put before me extracts from Hansard. In a debate on what is now Section 4 of the 1999 Act on 2 November 1999, Lord Williams of Mostyn, the government spokesman, said this (Column 736):-
"I turn now to the second element of the amendment; it is not about the use of detention or the regime proposed at Oakington. The point of the amendment is to give greater flexibility in the use of temporary admission. We would then be able to develop reception facilities at which those given temporary admission were required to reside but were free to come and go during the day if they wished ... It is not 24-hour detention; it is an intermediate stage ...
We want to be able to ensure that applicants remain at the accommodation overnight - again, I say this without any doubt that it is a proper thing to say - and to be able to say to them, `we require you to be present at this designated accommodation at certain times because that is when your interviews will occur'. There is nothing wrong with that. In fact, it is a sensible way to behave. One must apply proportionality in more than one way".
Why should that not be effective to achieve what Oakington sets out to achieve? Surely measures short of detention should be tried first and detention should be regarded as the last resort.

43. I have hesitated long before concluding that the arguments put forward by Mr. Pannick based on Mr. Martin's evidence do not persuade me that my view is wrong. I am satisfied that detention is not proportionate. I have, of course, considered all the material put before me and I do not find it necessary to extend this judgment by going into greater detail. Essentially, it boils down to a concern that applicants would leave the centre if there were no locks and therefore their presence for interview or questioning could not be guaranteed. Those concerns seem to me to be based on assumption and speculation rather than on substance.

44. As I hope will be clear, I am not saying that to detain those who come to this country seeking asylum is necessarily unlawful. It will be very easy to justify detention of illegal entrants, particularly those who have shown that they have single-mindedly set out to get here. Many will have spent what for them and those who supported them were large sums of money to be assisted by agents, who are in reality in the main criminals preying on those who, whether for economic reasons or because they face at worst persecution and at best probably discrimination and certainly a miserable existence, wish to make a life for themselves in this country. Their desire to settle here at all costs may be ample justification for forming the view that if not detained they will effect an unauthorised entry, particularly, of course, if they are not fleeing persecution and so are not likely to succeed in establishing that they are refugees. Equally, I am not saying that no-one detained at Oakington is lawfully detained. In the majority of cases, once the decision is made (often to refuse leave to enter) temporary admission is granted. But it is envisaged that in some cases detention will continue and in those, there would have been reason to detain beyond the need for a speedy decision on their claim for asylum.

45.What I have decided is that to be lawful detention must be justified for the individual under Article 5.1(f). Thus the reasons for and the purpose behind a person's detention are all-important. In these cases, the claimants have not been detained because they might otherwise effect an unauthorised entry or because action is being taken to remove them; it is because it is considered necessary to achieve a speedy decision in the interests of the general administration in relation to asylum claims. Indeed, the grant of temporary admission on refusal of the claims at a time when the likelihood of absconding is, one would have thought, greater shows that concerns that an unauthorised entry might otherwise be effected cannot have been the reason for detention. The reason for the detention of each individual is what is important. In these cases, it is to enable there to be speedy determination of their applications. It is that that renders the detentions in these cases unlawful. The same may well apply to many, perhaps most, Oakington cases. But that is because and only because the Home Office has chosen to make it clear that the sole reason why most applicants are detained at Oakington is because of the advantages it provides in ensuring speedy decisions. Otherwise, the applicants would be granted temporary admission and would not be detained.

46. For the reasons I have given, I am satisfied that the detention of all the claimants was not lawful. I will hear counsel on the appropriate relief to be granted.